STATEMENT OF ISSUES

 Question 1:            Is Acting under the authority of a Power of Attorney, granted by a principle to their agent, illegal as “practicing law without a license” when such act is provided by C.R.S. § 15-1-1304 and C.R.S. § 15-1-1313?

Question 2:  How are non-attorneys subject to the “sui generis” procedures[1] for disciplining licensed attorneys?   If  “practicing law without a license” is a violation of a statute, (C.R.S. § 12-5-101), why is it not prosecuted by the Executive Branch before a jury? 

 NATURE OF CASE, COURSE OF PROCEEDINGS AND DISPOSITION BELOW

Nature: 

This action was brought by the Office of Attorney Regulation Counsel to enjoin me from relying on the Power of Attorney Act (C.R.S. § 15-1-1304 and § 1313) as authority to represent a litigant. 

Course: 

This case began on November 30, 2006 when a defendant (Mr. Meyers) in a municipal court matter granted his Power of Attorney (“PoA”) to me [Record on Appeal, Tab “P”,  Exh. A of OARC’s Motion for Summary Judgment] and authorized me, pursuant to the plain language of the Power of Attorney Act, 15-1-1301, et seq., to speak in his behalf.   With that authority, I prepared a Notice of Appearance, quoting the PoA statute, and filed a Motion for Stay on his behalf[2] [Record on Appeal, Tab “P”,  Exh. B of OARC’s Motion for Summary Judgment].  Shortly thereafter, the municipal court prosecutor wrote to James Coyle, Deputy Regulation Counsel, with a request for an investigation into the unauthorized practice of law.  On December 12, 2006, Mr. Coyle requested that I respond to the allegations.   On December 19, 2006, I responded with a challenge to jurisdiction (that I maintained throughout these proceedings) and an explanation of my reliance on contract law and statute (along with a few of my own complaints regarding the lack of options for meaningful access to justice available to middle-income people.)  On or about January 3, 2007, Mr. Coyle opened Case No. 06 UPL 072 and assigned the investigation to Attorney Regulation Counsel Margaret Funk, Esquire.  On January 17, 2007, Mr. John Gleason issued a Subpoena which was served upon me to “attend and give testimony” and to “produce” evidence against myself at a deposition scheduled for January 26, 2007 [appears to be missing from Record on Appeal, attached hereto as “1”].    On January 22, 2007, I filed a Petition to Quash the subpoena, [appears to be missing from Record on Appeal] and simultaneously, Ms. Funk filed a Petition for an appointment of a Presiding Disciplinary Judge.  Both petitions were denied by this Court’s order under Case No. 07 SA 22. dated January 24, 2007 [Record on Appeal, Tab “A”].  On January 26, 2007,  I removed the State’s case against me to U.S. District Court, Case No. 07 CV 00192-LTB-CBS, [Record on Appeal, Tab “A”] to address federal questions regarding the right to contract, due process, counterclaims and for an Injunction against the proceedings below.  I served Ms. Funk, OARC, with the Removal Notice on the same day (January 26) and pursuant to 28 U.S.C. § 1446(d) the deposition should have been canceled because the state no longer had jurisdiction to proceed. When I did not show on January 26, Ms. Funk telephoned me on the record -  I answered - and asserted that she had no jurisdiction to demand my appearance. (This legal fact has been ignored and I have been assessed costs for the deposition).  On February 15, 2007, the State responded to the removed case with a motion to remand.  The Remand was granted on April 17, 2007.   I then filed a Writ of Prohibition and Mandamus with the U.S. Supreme Court on May 1, 2007 which was assigned case number 06-1492 (and was denied on October 1, 2007).  On June 7, 2007, I was served an Order to Show Cause issued by the Colorado Supreme Court Clerk, under a new case number 07 SA 162.   I responded on June 27, 2007.  On September 19, 2007, a Presiding Disciplinary Judge was appointed to this matter and it thereafter proceeded under his direction until his Report was filed on February 19, 2008, without a trial, pursuant to the consent of the parties. 

Disposition:  

The parties agreed to stipulate to the facts for the purpose of presenting briefs for a ruling without a trial.  On February 19, 2008, the Presiding Disciplinary judge entered his recommendation to enjoin me from relying on the Power of Attorney Act to represent litigants because it would be “practicing law without a license” and he also recommended the imposition of a fine ($250) and costs ($433.12) for the deposition that went forward without me even though it was foreclosed by 28 U.S.C. §1446(d).

STATEMENT OF FACTS

            The parties stipulated to the authenticity of 3 documents, and that I never held myself out as “licensed to practice law,” (page 3 of OARC’s Motion for Summary Judgment, “Undisputed Facts,” Record on Appeal, Tab “P”), to wit:

            (a)            Document:  Notice of Agent Pursuant to C.R.S. 15-1-1313, written and signed by me and filed into the record at the Municipal Court, Littleton, on November 30, 2006;

             (b)            Document: Motion for Stay, written by and signed by me, filed into the record at the Municipal Court, Littleton, on behalf of Charles Meyers;

            (c)            Document:  Power of Attorney granted by Charles Meyers to me dated November 30, 2006.    

            (d)             Fact:  “Respondent . . . identifies herself as a “Certified Paralegal. . .” (as opposed to “an attorney-at-law”). 

SUMMARY OF ISSUE  1

The Right to Contract and the Separation of Powers

             Issue I:  Is Acting under the authority of a power of attorney, granted by a principle to their agent, illegal as “practicing law without a license” when such act is provided by C.R.S. § 15-1-1304 and C.R.S. § 15-1-1313?

            Standard of Review:  When two statutes conflict, the more recent prevails, C.R.S. § 2-4-206; City & County of Denver v. Bd. of County Comm’rs, 782 P. 2d 753 (Colo. 1989).   A statute must be interpreted according to its plain language, Davison v. Indus. Claim Appeals Office, 84 P. 3d 1023, 1029 (Colo. 2004); Hernandez v. People, 716 P. 3d 746 (Colo. 2008).   Courts will not alter the plain language of a statute or read in to it what is not there, Holcomb v. Steven D. Smith, Inc., 170 P. 3d, 815 (Colo. App. 2007).   “We have held that where two statutes attempt to regulate the same conduct, the more specific statute does preempt the general one.”  Showpiece Homes Corp. v. Assurance Co. of Am.  38 P. 3d 47, 53 (Colo. 2002); Les Normadin v. Respondent People of Town Parachute, 91 P. 3d 383 (Colo. 2004).  “To discern the intent, we afford the statutory language its ordinary and common meaning, giving effect to every term and provision, including legislative definition, while harmonizing potentially conflicting provisions, if possible,”  Telluride Resort & Spa, L.P. v. Colo. Dept of Revenue, 40 P. 3d 1260, 1264 (Colo. 2002).

            PDJ’s Conclusion of Law:    After citing case law  prior to the enactment of the Power of Attorney Act, the PDJ held that, “ . . . neither the Colorado Supreme Court nor the PDJ have previously recognized a statutory power of attorney that allows a respondent the ability to practice law without a license.”  Judge Lucero also stated that if the PoA statute could be construed as permitting a non-attorney to practice law, then it would be in violation of the separation of powers because “any legislation that infringes upon the judiciary’s inherent authority to regulate the practice of law is unconstitutional”, Page 4 of Report filed February 19, 2008.  

Contracts:  The Power of Attorney Act, enacted by the Colorado Legislature in 1995, specifically grants an agent, authorized by the grantee of a Power of Attorney, the power to prosecute and defend any claim in any court. (C.R.S. § 15-1-1304, § 1313).   The statute does not define, or limit, the term “agent” to those licensed to practice law by the Colorado Supreme Court.  When read in harmony with the U.S. and Colorado Constitutions – pertaining to the right to contract - this statute requires recognizing the distinction between an Attorney/Counselor-at-Law, who is licensed to appear in court on behalf of another, and an Attorney-in-Fact, who is temporarily authorized (e.g., “licensed”) through the right-to-contract by an individual to speak in their behalf.  (In other words, one Power of Attorney does not authorize me to go willy nilly into court for any and all litigants).  Under the statute, the agent can do any act that the grantor of the Power of Attorney could do for themselves (pursuant to the Legislature’s prefatory notes and language of the suggested form, C.R.C. § 15-1-1302).  Since it is undisputed that pro se litigants can appear for themselves in court, they can also assign that right to another. 

Powers:  The Power of Attorney Act does not violate the “separation of powers” between our three branch government by authorizing a non-attorney to “practice law” because it is NOT the legislature that does the authorizing.  It is the individual, with a knowing, willing act of free will, who conveys his right to use the courts to his agent via a contract created and provided by the Power of Attorney Act -- which contract is protected by the U.S. and State constitutions.  (U.S. Const. Art. 1 § 10 and Colo. Const. Art. 2 § 11).  An agent, or an attorney-in-fact, created by the Power of Attorney Act (C.R.S. § 15-1-1301, et seq.)   does not violate the power given by the state constitution to the state Supreme Court to regulate the practice of law, because like attorneys, the agent must obey the rules and procedures for the “administration of the courts.” It must be noted here that the “administration” of the courts is the only power the Colorado Constitution delegates to the Colorado Supreme Court.   Article VI, § 21 does not give the Colorado Supreme Court the power to limit a citizen’s choice of assistance when using the courts now that the Power of Attorney Act has been adopted by the Colorado Legislature (C.R.S. § 2-4-206 provides that new legislation supercedes the previous – as in this case, the PoA statute now supercedes the UPL statute, C.R.S. § 12-5-101).  In conclusion, I believe that when a citizen employs the Power of Attorney Act to authorize their agent to speak for them in the courts, there is no “unauthorized practice of law” because the agent is merely speaking for another with their permission, authorized by statute and secured by contract, protected by the constitutions.

ARGUMENT -  ISSUE I – THE POWER OF ATTORNEY ACT AUTHORIZES THE PERFORMANCE OF A CONTRACT

        The relevant parts of the Power of Attorney Act states:

 “C.R.S. § 15-1-1304: (1) By executing a statutory power of attorney with respect to a subject listed in section 15-1-1302[3] (1), the principal, except as limited or extended by the principal in the power of attorney, empowers the agent, for that subject to:

(a) Demand, receive, and obtain by litigation . . .

(d) Prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to, a claim existing in favor of or against the principal or intervene in litigation relating to the claim;

(e) Seek on the principal's behalf the assistance of a court to carry out an act authorized by the power of attorney;

(f) Engage, compensate, and discharge an attorney, accountant, expert witness, or other assistant; . . .”

[Emphasis added].

 C.R.S. § 15-1-1313:   “In a statutory power of attorney, the language with respect to claims and litigation empowers the agent to:

(a) Assert and prosecute before a court . . .

(b) Bring an action to determine adverse claims, intervene in litigation, and act as amicus curiae;

(c) In connection with litigation, . .

(d) In connection with litigation, perform any lawful act, including acceptance of tender, offer of judgment, admission of facts, submission of a controversy on an agreed statement of facts, consent to examination before trial, and binding the principal in litigation; . . .”  [Emphasis added].

            The term “agent” is not defined anywhere in the Act – therefore the term “agent” is not restricted to only licensed attorneys.

While it is true that there is abundant case law from this Court defining the “practice of law” –  it is ALL prior to the enactment of the Power of Attorney Act[4], C.R.S. § 13-1-1301, et seq.   By adopting the Uniform Statutory Power of Attorney Act in 1995, the Colorado Legislature provided the People with the option of assigning a non-attorney the authority to speak for them “in any court” under contract law. (To the extent that an agent is responsible for performing for the benefit of the grantor, it creates a contract between the parties.  An agent who uses the PoA authority for unsavory means is subject to penalties of civil suit as provided by law protecting the grantor.  Indeed, this fact is a maxim of law, Vectra Bank v. Bank Western, 890 P. 2d 259; Independence Indemnity v. Int’l Trust Co., 39 P. 2d 789; Federal Surety Co. v. White, 295 P. 281).   The Power of Attorney Act creates a fiduciary obligation upon the agent and is enforced through the same principles as contract law.  I am asserting that the Colorado Bar cannot void this new provision of law by arbitrarily  characterizing it as “practicing law without a license”.   The Power of Attorney grants a license – from one individual to another.  Is it illegal for one individual to convey their right to use the courts to another?  It is illegal only if pro se litigants are violating the law. The Power of Attorney Act specifically states that it is intended to provide citizens with the right to assign duties to another to do “anything they could do for themselves”.  (See C.R.S. 15-1-1302 and the suggested text for a Power of Attorney – including a warning that the principle is subject to the outcome – just as is a pro se litigant and represented litigant). 

CONFLICT?

Does the PoA statute conflict with the provision in Colorado Constitution, at Art. VI, § 21 which gives the Colorado Supreme Court the exclusive jurisdiction over the administration of the courts and the power to “make and promulgate rules governing the practice and procedure in civil and criminal cases”?   Since the Power of Attorney Act does not provide for granting powers to individuals to “make and promulgate rules governing the practice and procedure” of court actions, the statute clearly does not conflict with the state constitution.   To the contrary – the state constitution guarantees the right to use a Power of Attorney because the State and Federal constitutions guarantee the right to contract. The Constitution forbids a state from making any law that impairs the obligation of contracts, and from creating a “privilege” or “franchise” that results in a monopoly as the “practice of law” restrictions would  – BUT FOR the Power of Attorney Act and our constitutional protections. U.S. Constitution, Art. 1 § 10; Colorado Constitution, Art. 2 § 11.  

The U.S. Supreme Court held, in McCullough v. Virginia, 172 U.S. 102, (1898) that even though the legislature enacted a law that voided a previous Act (providing for a contract between the states and purchasers of state issued coupons) that law could not be enforced because it violated Art. I, § 10 of the U.S. Constitution, which forbids any state from impairing a contract.   

CONCLUSION – ISSUE 1

Does the Power of Attorney Act make legal – something that was once illegal? Yes.  That is progress.  Since 1995, as long as the agent is speaking under the authority and protection of the Power of Attorney Act - speaking in court for another is no longer illegal and should not be prosecuted as such. 

SUMMARY OF ARGUMENT  - ISSUE  II

Issue II:  How are non-attorneys subject to the rules for disciplining licensed attorneys?   If  “practicing law without a license” is a violation of a statute, (C.R.S. § 12-5-101), why is it not prosecuted by the Executive Branch before a jury? 

            Standard of Review: Any order issued without jurisdiction is void, Davidson Chevrolet, Inc. et al. v. City and County of Denver, 138 Colo. 171; 330 P. 2d 1116 (1958); Whitten v. Coit, 385 P.2d 131 (Colo. 1963); Sanchez v. Straight Creek Constructors, 580 P. 2d 827 (Colo. App. 1978); Colo. Dept. Public Health & Environment v. Caulk, 969 P. 2d 804.

The rules for prosecuting licensed attorneys are not applicable to the public at large, People v. Morley, 725 P. 2d 510 (Colo. 1986).  At page 516, the Morley Court held:   

“[S]ince a disciplinary rule is promulgated for the purpose of guiding lawyers in their professional conduct, and is not directed to the public at large, the central consideration in resolving a vagueness challenge should be whether the nature of the proscribed conduct encompassed by the rule is readily understandable to a licensed lawyer.”  [Emphasis Added].

             PDJ’s Conclusions of Law:            The Presiding Disciplinary judge did not address the challenge to jurisdiction with conclusions of law.  The order states, “the court finds” it has jurisdiction.”  (Record on Appeal, Tab “Mc”).

Nexus:  The prosecution of non-attorneys under the same rules as those promulgated for disciplining attorneys is unconstitutional and therefore, void.  Because attorneys operate under a license for which they applied – they are subject to the rules that go along with that license – which include some investigative procedures that are clearly unconstitutional BUT FOR the fact that constitutional protections are waived with the acquisition of the license.  It is the same for driver’s licenses whereby the driver waives the right to refuse to give evidence against him/herself (at a DUI check-point).  However, without such a nexus through licensure, the accused must be prosecuted by the execute branch and a jury of peers pursuant to the 7^th Amendment to the U.S. Constitution (if “sui generis” is civil, or the 6^th Amendment if it is criminal) which guarantees a jury trial “in suits at common law where the value in controversy shall exceed $20 the right to a jury shall be preserved . . . ”.

Since I am not licensed, there is no nexus between the Bar and myself that subjects me to C.R.Civ.P. Rule 232.5, et seq., with its requirement to give evidence against myself to a biased forum that investigates, charges, prosecutes and picks the winner. A truly impartial forum would be before a jury – and a prosecution by the executive branch.  However, that’s not possible, because the statute under which this prosecution is allegedly authorized, (C.R.S. 12-5-101), does not provide for enforcement, therefore rules for disciplining disbarred attorneys have been employed – unconstitutionally – against non-attorneys.  

ARGUMENT – ISSUE II

The procedures to investigate suspected violators of Unauthorized Practice of Law (“UPL”) employed by the Regulatory Counsel involve the use of police powers and  subpoenas (see attached, Exhibit 1), ordering the accused to produce books and records that will be used against them.  The alleged authority for this is Rule 232.5(f)[5] however, this violates the protections of the 5^th Amendment because it requires the accused to “be a witness against himself.”  How does this abuse of power not conflict with the rights of the accused as protected by the 4^th and 5^th Amendments to the U.S. Constitution[6]?   How does the Attorney Regulatory Counsel have the authority to order citizens to waive their right to be secure in their papers and effects without offending the U.S. Constitution?    How does a non-attorney become subject to a jurisdiction under the authority of the “Attorney Regulatory Counsel” and its rules when there is no nexus through license?   How can the Colorado Supreme Court construe their rules as superior to the provisions of the Power of Attorney Act, C.R.S. § 15-1-1301, et seq ?

When prosecuted under UPL, the accused is denied the fundamental right to trial by jury – which right, in the case of the non-attorney, was not waived through license application.    "Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them."  Miranda v. Arizona, 384 U.S. 436 (1966).   Every prosecution against a non-lawyer should take place in compliance with the constitution – by the executive branch, before a jury of peers.  The judgment entered against me is void, as unconstitutional.       

CONCLUSION – ISSUE 2

            The prosecution against me was conducted without jurisdiction and is therefore void.

RELIEF REQUESTED

            I request that this Court vacate the recommended judgment against me, and allow the public the full application of the Power of Attorney Act as provided by its plain language, even if only with “special permission” as with non-attorney representatives in workers’ compensation cases,  UPL Committee v. Employers Unity, 716 P. 2d 460.

Dated this ____day of _______________ 2008.                                                                                                                                                  Respectfully submitted

THE OARC HAS SUBTLY ALTERED THE ISSUES

           The OARC has re-written the issues in such I way that I must protest.

(1)  I have NEVER asserted that the Colorado Supreme Court has no authority or jurisdiction to promulgate rules governing the practice and procedures in civil and criminal cases[1].   All litigants are subject to following the “practices and procedures” – aka rules – when appearing in court, whether pro se or represented.  (2)  I have NEVER asserted that the “unauthorized practice of law” could not be prosecuted against non-lawyers.  My position is that a non-lawyer cannot be prosecuted under the rules created for regulating the Bar because (3) absent a nexus or waiver of constitutionally protected rights (such as provided by a license) it is unconstitutional for the OARC to have the power to shift the burden of proof to the accused (by requiring the accused to attend a deposition for the sole purpose of giving evidence against themselves).  Additionally, I never said an individual may “practice law” under the Power of Attorney Act.   My position is that under the Power of Attorney Act, the Agent is performing, as a spokesperson, under contract law, with the authority of the Principal, doing something the Principal has a lawful right to do themselves (but chooses not to), and is doing so by the exercise of Principal’s free will and right to make their own decisions – rather than “practicing law”.  While the OARC asserts that the PoA Act (if interpreted as written) allows an unlawful act and therefore, cannot be enforced, I assert that what the Agent does for the Principal in a courtroom (under §1304 and 1313 of the Act) is not “practicing law” and therefore, violates no rule or law.   It breaks no law when an individual appoints a speaker to articulate for them in court under the PoA Act.  One Power of Attorney does not grant an individual the right to, willy nilly, represent everyone in Colorado, which would be construed as “practicing law”.   If appearing for another without a Power of Attorney – the unauthorized practice of law can be prosecuted – but should be done as provided by the legislature under a 3-branch system. [2]  (Argued in my short, Opening Brief, and addressed on pages 7-8 herein).   Lastly, (4) I assert that I was not “practicing law” nor, at the moment in issue, was I enjoined from employing the Power of Attorney Act, so should not be assessed (fines[3]), fees and costs for this “sui generis” proceeding.      

THE OARC ACKNOWLEDGES THE UNIQUENESS OF MY ARGUMENTS THEREFORE I SHOULD NOT BE SANCTIONED FOR ASKING THIS COURT TO ADDRESS THEM

          On page 13 of their Answer brief, the OARC states,

“This Court has not yet addressed Sanders’ separation of powers argument  . . . “ [but has addressed it under attorney disciplinary proceedings].         

           On page 21, the OARC states that the discussions surrounding the Power of Attorney Act – before its enactment – are silent as to whether it was intended to allow a lay person to appear in court for another, to wit: 

“There was no discussion whatsoever about the portion of the bill that eventually became C.R.S. §15-1-1313.”  

 and

“Again, as in 1992, there was no discussion pertaining to allowing an agent acting under a power of attorney to practice law.”

The OARC also cites HB 94-1228, whereby the Legislature declared,

“The General Assembly hereby recognizes that each adult individual has the right as a principal to appoint an agent to deal with property or make personal decisions for the individual.”

While HB 94-1228 pertains to Part 6 of the Act (regarding medical treatment) and here, we are discussing Part 13 (regarding asserting a claim or defense in any court), I’m happy to include this citation because the Legislative Declaration refers to the “right of the People” to make their own decisions.  That is all we are asking.

The OARC’s brief is replete with cases from other States that have denied acknowledging the plain language of the Act and have prosecuted their citizens for not being psychic enough to presume that an Agent MAY NOT do exactly what the statute tells them they can do. It amazes me that the foreign court decisions quote the part of the statute that provides for an agent to “assert and defend a claim … in any court” and then hold that it doesn’t say that[4].  Citizens are required the know and follow the law – yet in this case – the citizen relies on law, at their peril, because there is NOTHING in the statute that defines the term “AGENT” as only a licensed, barred attorney. The OARC asserts that Citizens are responsible for knowing the attorney rules (even though they aren’t attorneys) – (page 26 of their Response Brief) which informs them that the PoA Act cannot be taken literally.  First – in school, Jurisdiction 101 teaches that rules are inferior authority to statutes, and second, Colorado has NOT interpreted the Power of Attorney Act so there aren’t even annotations to warn the public that Sections 1304 and 1313 of the Act are void.   The Susanne Shell case is NOT on point because that was a contempt proceeding for the violation of her stipulated agreement (fully argued in my Opening Brief). 

JURISDICTION – The OARC’s CASES ARE OFF-POINT

My first question – which has been avoided - is how did I become subject to a sui generis proceeding that unconstitutionally requires the accused to assist in their own prosecution?   The OARC suggests that I ”subjected” myself to the jurisdiction of their sui generis proceedings by “allowing” myself “to be personally served” (page 37 of the Answer Brief).  With all due respect – how does one not get served?  Point a shot gun from the front door?   Sic a dog on the process server?  Even that doesn’t work – the process server would throw the papers at me and run – thereby accomplishing “service by refusal”.   (I’ve been a process server).  

The OARC suggests that, by virtue of using the courts, a participant has waived their rights (and is subject to whatever procedures are employed in an OARC prosecution).   With all due respect – this is absurd.  Don’t judges (and lawyers) take an oath to promise to protect rights?    

In rebuttal to my challenge that the prosecution against me cannot be done through rules, the OARC cites Noffsinger v. Nebraska State Bar, 622 N.W. 2d 620 (Neb.2001).   That case (a foreign case) states – throughout the decision – that the Rules for Discipline are for attorneys, to wit, at page 625:

  “Among these powers are the powers to admit and discipline attorneys.”   And, “[P]ursuant to these powers to regulate the bar, the Supreme Court has promulgated rules for the admission and discipline of attorneys, should the need arise.  The Power to Regulate the bar, as an inherent power of the Supreme Court, is judicial in nature.”   And, In exercising its inherent power to regulate the bar, this court uses the Counsel for Discipline for investigative purposes.  The Counsel for Discipline has been given, among other things, the power to investigate allegations of misconduct , prepare and file charges of misconduct against attorneys and dismiss charges.”  And, “Indeed, because the Counsel for Discipline investigates and prosecutes only attorneys….”     

        [Emphasis added.]

In rebuttal to my assertion that the prosecution against me was  biased because all the appointees who prosecute unauthorized practice of law are selected by the same branch that makes the final decision, the OARC cites Dee Enterprises v. Industrial Claim Appeals, 89 P. 3d 430 (Colo. App. 2003).  This case is very helpful to my position because it explains that an administrative procedure[5] survives a constitutional challenge because the administrative body is appointed by the Legislature and all appeals from it go to the Judiciary (at page 432) thereby providing the balance of powers.   That case also explains that an administrative procedure is fair because of the fact that the legislature retains authority to effectively change the agency’s rules. (page 434).  That is not the case here – the General Assembly did not create the agency that prosecuted me.  If the Colorado Constitution’s words at Art. VI § 21 (to “promulgate rules governing the practice and procedures of civil and criminal cases”) can be construed to put a dictatorship into the hands of one branch of government (resulting in violating a non-lawyer’s right to be heard in an impartial forum – and violating the right not to be compelled to give evidence against oneself) then it violates the U.S. Constitution.   In fact, the General Assembly has NOT provided any punishment for the violation of the UPL statute (C.R.S. §12-5-101) against non-lawyers.  That is a defect in the system that this Court does not really have the lawful authority to remedy[6].   This Court has so held in People v. M.B., 90 P. 3d 880, at 822, 

But the power under the constitution to criminalize conduct and set the punishment for a crime resides within the legislative branch; absent a constitutional infirmity, we have no basis to interfere with the exercise of that power.

          The OARC quotes People v. Smith, 937 P. 2d 724 to rebut my objection to being involuntarily made subject to rules for disciplining attorneys.  First, Mr. Smith was a lawyer (and waived some of his constitutionally protected right through licensure) and, secondly, this Smith case relies on my favorite case, People v. Morley, 725 P. 2d 510 (Colo. 1986) which holds that the disciplinary rules are for lawyers.  (See page 11 of my Opening Brief).   

          To rebut my argument that it was unconstitutional to subpoena me to a deposition, the OARC quotes Steiner v. Minnesota Life Insurance Co., 85 P. 3d 135 (Colo. 2004) which discusses the use of the 5^th Amendment.   That case explains that the 5^th Amendment may not be used by a Plaintiff to thwart the defendant’s defense or block the defendant’s need for discovery.   Here, the Plaintiff (OARC) was fishing for evidence against me – because they had NO complaints (not even from Mr. Meyers whose PoA started this).  The OARC suggests that I am obligated to donate my time to attend a deposition even if I would have pleaded the Fifth at every question.  Is that not a waste of everyone’s time and equivalent to harassment?  They already had all the information they needed. The reason the deposition was not cancelled was because of the OARC was stubbornly “showing me” who was in charge – without regard for reasonableness.  When, on January 25, 2007, I received this Court’s denial of my Petition to Quash (mailed on January 24, 2007, see Record on Appeal, Tab A), I telephoned Ms. Funk to tell her I was filing a removal.  I only had a few daytime hours to protect my rights before the scheduled deposition of January 26.  And from the moment I filed the Removal to Federal Court, (8:13 a.m.) and noticed the OARC at 8:20 a.m. (see time stamps, Tab A, Record on Appeal) the State Court had no jurisdiction to proceed, pursuant to 28 U.S.C. § 1446(d).  I should not be sanctioned for defending my rights, nor for refusing to accept a shift in the burden of proof.  The deposition should never have been set in the first place.   If there was evidence against me for harming someone – then no interrogation was necessary.   Fact is, I have never harmed anyone.     

The OARC quotes Fravel v. Stark Cty, Bd. of Revision, 728 N.E. 2d 393, to support the theory that if everyone else is doing it (voiding sections of the PoA Act), so should Colorado.   The fact is:  in that case – 3 of the 6 justices dissented in favor of permitting a PoA to be employed when a citizen chooses to grant their authority to someone they trust, to speak for them in court.  

FINES, COSTS AND SANCTIONS ARE NOT FAIR

I relied on a Statute.  Even though this action is mischaracterized as a Petition to enjoin me from “practicing law” the truth is that I am being enjoined from the benefit of employing provisions of an enacted statute, specifically, C.R.S. 15-1-1304 and 1313. 

Everyone has the right and obligation to read and rely on statutes.  Everyone has the right to use the courts.  No one has explained how relying on a statute and using the courts subjected me to Rules promulgated for attorneys (People v. Morley, 725 P. 2d 510, page 11 of my Opening Brief) and the obligation to subject myself to an interrogation specifically for the purpose of giving evidence against myself.            The OARC asserts that because the unauthorized practice of law is only punishable with rules created by the Judicial branch, then those Court Rules supercede statute and that all citizens are subject to attorney rules (page 16 of their Answer Brief).  However, this Court has held otherwise.  

The power under the constitution to criminalize conduct and set the punishment for a crime resides within the legislative branch; absent a constitutional infirmity, we have no basis to interfere with the exercise of that power.  People v. M.B., 90 P. 3d  880, 882. 

First – if I committed a crime – only the legislature can provide the punishment as held in People v. M.B.  If I broke a rule – I had to be subject to the rule in order to be punished under the rule.  How was I placed under rules for attorneys?   Are pro se litigants under those rules?  Why aren’t THEY punished for practicing law without a license?   I assert that if I committed a crime, the executive branch should have prosecuted it in order to comply with due process (fully argued on page 12 of my Opening Brief).  In order to prosecute a victimless crime  there must be a nexus between the offender and the forum.   

The OARC generously concedes the issue of fines ($250) but requests that I pay $433.00 for not attending the deposition that they refused to cancel.  They assert that I announced my intended absence the morning of the deposition (January 26, 2007) when it was too late to cancel the Court Reporter.  Even though I state that told Ms. Funk the day before that I was filing a removal, the Removal Action was delivered to the OARC 70 minutes before the deposition – enough time to cancel the Reporter. 

CONCLUSION

It is my sincere hope that all the talk[7] about how pro se litigants need meaningful, affordable assistance in court, is sincere.  While the OARC asserts that a license to practice protects the public from incompetence – with all due respect – a license does no such thing.  Perhaps it reduces the public’s exposure to incompetence – but I see the Office of Attorney Discipline is very busy dealing with the cases they actually accept for prosecution (usually involving dishonesty).  There are many more occasions when litigants discover that their attorney has not done a very good job – but that apparently does not rise to the level necessary for discipline because “the remedy is appeal”.  The OARC asserts that I should spend the money to get a license -- and I believe that is the wrong attitude.  It is (allegedly) because of the expense of licensure that attorneys charge high fees.  I am suggesting that it is time to provide the public with an affordable alternative to attorneys and the public should enjoy the right to make their own decisions regarding their choice of assistance in the legal arena.  This Court has the opportunity to level the playing field for middle income people[8] – by applying the plain language of the Power of Attorney Act as written.  It’s time to evolve in harmony with the public’s needs.  This is called progress.

Will you do it?  Or continue precluding middle income people from meaningful access to the courts?   They’re your People.

                                          Respectfully submitted,